V.B. and Osinger had a relationship. When it terminated, he continued to contact her in a variety of ways (email, text, etc.). They originally lived in Illinois, but V.B. moved to California, where she accepted a job. Before she moved, he showed up at her residence and place of employment.

Following her move and after she definitively broke off the relationship, Osinger continued to text and email her. Some of the texts were veiled threats to expose explicit photos Osinger had taken of her, and others were just plain threats (e.g., “[a]m going to make sure u fucking hate me. After this weeknd”). Osinger made good on his threats and created a Facebook page where he posted photographs and other explicit materials depicting V.B. that he then disseminated to her current and former co-workers. V.B. was understandably distraught.

Following trial, Osinger was found guilty of stalking in violation of the federal anti-stalking statute and sentenced to 46 months. On appeal, he challenged the constitutionality of his conviction.

Facial challenge: Osinger’s facial challenge goes nowhere. The stalking statute is not directed to speech (but to a course of conduct), and Osinger can’t satisfy the high burden of showing that the statute is unconstitutional in a substantial number of its applications. The court also says that the terms “harass” and “substantial emotional distress” are capable of being understood by the average person, so their use does not render the statute unduly vague. The statute also requires intent, so any potential defendant would be on notice that their conduct is prohibited.

As-applied challenge: The court also rejects the as-applied challenge, saying that Osinger’s speech falls within the “speech integral to criminal conduct” exception. The criminal conduct is stalking (i.e., the intentional causing of severe emotional distress, harassment or intimidation), and any expressive aspects of Osinger’s speech were key to the prohibited conduct. The court mentions in passing that in the context of the anti-stalking statute, Osinger’s conduct:

is not afforded First Amendment protection [because] it involved sexually explicit publications concerning a private individual.

The court continues that the public has no “legitimate interest” in this speech, and publication of these types of private facts would be “highly offensive”.

Judge Watford’s concurrence: Judge Watford concurred, saying that while he agreed Osinger’s speech fell within the “speech integral to criminal conduct” exception, the boundaries and rationale for this exception have not been well defined. In his view, Osinger’s case fit comfortably within the framework of the prevailing First Amendment doctrine because (1) there’s a valid criminal statute, and (2) while there may be pure expressive elements of Osinger’s speech, its “sole immediate object” was the commission of the stalking offense. Judge Watford acknowledged that speech is not excluded from the bounds of First Amendment protection just because it’s “harassing or offensive.” But what makes this a straightforward case is that there’s both protected and un-protected speech (or both protected speech and conduct):

On the other hand, Judge Watford notes that even when there is a course of conduct, if the defendant’s conduct consists of “pure speech,” the First Amendment question becomes less straightforward. In this instance, the government would have to show that “substantial privacy interests are being invaded in an essentially intolerable manner,” and it’s unclear whether the stalking statute tracks this standard.

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This ruling confirms that in the view of federal appeals courts, a person who engages in the nonconsensual posting of explicit material can be validly targeted under the federal anti-stalking law when it’s part of a course of conduct (which it often is). I blogged about Sayer, which is another revenge porn case from the First Circuit, and both of these cases emphatically rejected First Amendment challenges raised by the defendants. (See alsoUS v. Petrovic.) These cases can be contrasted with U.S. v. Cassidy, where although the defendant may have caused severe emotional distress through repeated taunting, the victim was arguably a public figure and there were political or public interest overtones to the speech. States fashioning revenge porn statutes would be wise to track these rulings. Of course, the ability to go after the person who engages in nonconsensual posting of explicit material does not answer the question of how to tackle the downstream dissemination of this content, but ostensibly, if there are criminal proscriptions against the posters, this should reduce the likelihood of this happening in the first place.

Application of the “integral to criminal conduct” exception often feels circular, given that the conduct in question is the outcome of the expression. Judge Watford’s concurrence hints at this but notes that this case does not present a difficult question of whether this exception applies, because it involves conduct. The conduct he cites to (in-person contact) constituted a pretty small part of Osinger’s campaign and appears to have pre-dated V.B.’s unequivocal declaration that she did not want to be contacted by Osinger, so I did not find Judge Watford’s stance perfectly satisfying. This case and Sayer also skirt around the issue of what type of threat is necessary, and whether any threat is necessary at all. There were threats here and in Sayer, but it’s unclear whether the threats need to be physical in nature.

The main opinion casually says that Osinger’s speech is not protected, but does not address recent Supreme Court opinions that say there’s only a few narrow categories of speech that are truly unprotected, and even false speech is not categorically unprotected. Judge Watford’s concurrence points this out and also highlights that the Supreme Court has not expressly addressed the issue of whether the unauthorized disclosure of “intensely private” facts can be proscribed consistent with the First Amendment. He seems more reluctant to say outright that posting explicit photos of someone is not protected expression, but says that in the right circumstances, “highly offensive speech” on matters of private concern can be validly proscribed. One of the challenges in carving out the “highly offensive” speech is, of course, the subjectivity that it injects into the analysis. Perhaps we can all agree that posting intimate photos without permission would be highly offensive to anyone, but that’s an unstated assumption that is at play here.

[As a sidenote, Judge Watford is rumored to be on the short list of possible Supreme Court nominees, so count this among the cases that are likely to receive attention in the event he does receive a nomination. It’s tough to draw any real conclusions from this opinion. While it does suggest some openness to finding that Osinger’s speech is not protected in the first instance, it seems more protective of First Amendment interests than the majority opinion.]

(“NY Court is Critical of Cyberbullying Law“.) The judges appear skeptical of that law. Perhaps because it covers things like annoyance, or perhaps those judges are taking a more First Amendment-protective approach?